—– Suits can be made over failure of constitutional duties of public officer
ISLAMABAD: Supreme Court judge Justice Athar Minallah has pointed out that under Article 212 of the Constitution, people can claim damages against public servants over failure to fulfil their constitutional duties.
“In our Constitution, the framers have expressly created the right to claim remedies for tortuous acts of the government or any person in the service of Pakistan or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant,” says Justice Minallah while referring Article 212 of the Constitution.
The judge issued an additional note over the state functionaries’ failure to hold elections within 90 days. Justice Minallah says that when on account of transgression, wrongful exercise of authority, abuse of power or reckless disregard for or neglect of public duties the constitutional rights are denied or breached, the citizen who has been wronged becomes entitled to claim various remedies including damages in common law for the tortuous acts.
The violation of a constitutional right is in itself an independent wrong and its violation is premised on the adage that there is no right without a remedy. In a few jurisdictions the right to seek a remedy for tortuous acts of public authorities is recognised in the Constitution while in most of the countries the jurisprudence has developed under the common law.
It is a unique and distinguishable feature of the Constitution because it expressly confers the right to claim public law remedies for tortuous acts of three categories of public authorities. It is a right which appears to have escaped the attention of the courts nor has it been invoked by a victim of wrongful exercise of public power.
It can create a formidable deterrence for violations of the Constitution and constitutional rights if the victims are enabled to effectively exercise this right. It is regrettable that no initiative has been made since the promulgation of the Constitution to establish special courts as contemplated by the framers.
Nonetheless, since this right has been created under the Constitution it cannot be denied nor made redundant on account of failure to establish the special courts to exercise exclusive jurisdiction as was intended by the framers. No right is without a remedy. –Agencies
